from the United States District Court for the Western
District of Texas
DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
an appeal from the denial of qualified immunity to a city
attorney in a Section 1983 suit. We conclude the plaintiff
does not have standing to pursue the claim in federal court.
We therefore VACATE and DISMISS.
AND PROCEDURAL BACKGROUND
in Hearne, Texas circulated an initiative petition to force a
forensic audit of the city's finances. Under the
City's charter, a petition, after being signed by a
required number of voters, is submitted to the City. At that
point, a designated City administrator has fifteen days to
transmit the petition to the city council. Within ten days of
receiving the petition, the city council may adopt the
measure the petition demands or send it to an election.
Milton Johnson, an organizer of the petition here, submitted
the petition to the City's clerk in March 2016. Johnson
alleges the City's policy was to have the clerk forward
petitions to the county elections administrator for
verification of the required signatures. Here, though, he
claims the city attorney Bryan Russ obtained the signature
pages to prevent their delivery to the county elections
administrator in an effort to keep the initiative from
appearing on a ballot.
Russ was allegedly preventing the signatures'
certification and before any of them were certified, the city
council considered Johnson's petition and voted to
challenge its validity. That challenge came in the form of a
lawsuit against Johnson in Texas state court on grounds
having nothing to do with the signature requirement. By the
end of April 2016, all of the signatures were delivered for
with his answer to the City's suit, Johnson filed a
third-party complaint against Russ and his law firm under 42
U.S.C. § 1983. Russ removed the suit to federal court in
July 2016, relying on the right to remove when federal and
state law claims are joined. See 28 U.S.C. §
1441(c). The City and Johnson subsequently settled their
dispute. Johnson's claims against the law firm were
dismissed for failure to state a claim. See Fed. R.
Civ. P. 12(b)(6). The only surviving dispute is Johnson's
Section 1983 claim against Russ. Russ moved for summary
judgment based on qualified immunity, but the motion was
denied. He appealed.
alleges that Russ violated his "First Amendment right to
petition for redress of grievances as well as his Fourteenth
Amendment right to equal protection." We decline to
reach the merits of Russ's qualified immunity defense to
these arguments because Johnson lacks standing to assert
party has questioned our jurisdiction over this appeal, but
"we must raise the issue of jurisdiction on our own
motion if necessary." Bernhard v. Whitney Nat'l
Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a
sua sponte examination of the district court's
jurisdiction. See United States v. Creamer Indus.
Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the
party asserting federal jurisdiction must show it exists, an
obligation that applies even when we sua sponte
raise the question in the review of a summary judgment
determination. Ford v. NYL Care Health Plans of Gulf
Coast, Inc., 301 F.3d 329, 332-33 (5th Cir. 2002).
true that Johnson involuntarily arrived in the federal court
because the defendant Russ removed the case from state court.
Once in federal court, though, Johnson sought the court's
resolution of Section 1983 claims against Russ. In order to
have the court resolve those claims, it is Johnson's
burden to demonstrate we have jurisdiction.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 339,
342 n.3 (2006).
jurisdictional question is whether Johnson has standing. He
"must show: (1) [he] has suffered, or imminently will
suffer, a concrete and particularized injury-in-fact; (2) the
injury is fairly traceable to [Russ's] conduct; and (3) a
favorable judgment is likely to redress the injury."
Houston Chronicle Publ'g Co. v. City of League
City, 488 F.3d 613, 617 (5th Cir. 2007). Mere
allegations are insufficient to defeat a motion for summary
judgment. Instead, through an affidavit or other evidence,
the opponent of the motion must offer "specific
facts" that "will be taken to be true."
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(citations omitted). In our ana;ysis of standing, we grant
Johnson "all reasonable factual ...